Memorandum by the Department
2000 (S.I. 2000/124)
1. This Memorandum is submitted
in response to the following points which the
Committee raised in their letter
of 2 February 2000.
and 29(2)(b) refer to the "disputed" action". Is
this intended to be a reference to the "enforcement decision"
(of the Secretary of State or other person as defined in section
37(7) of the Health Act 1999).
2. It is considered that the
words "disputed action" bear their ordinary meaning
and that in context they refer to the relevant enforcement decision.
Nevertheless, the Department intend to resolve any possible doubt
by amending regulations 14 and 29(2)(b) at the first convenient
regulation 16(3) is intended to empower a member of the tribunal
staff (as distinct from a (legally qualified) chairman) to make
interim orders or directions.
3. By paragraph (c) of the definition
of "tribunal" in regulation 2, either a member of the
panel of tribunal chairmen or a member of staff appointed by the
Senior Chairman may make or give directions and orders on a temporary
basis before the appointment of the chairman. Staff are appointed
by the Senior Chairman and they may only exercise functions under
regulation 16(3) within the limits of the terms of their appointment.
Whether staff are appointed for this purpose, and if they are
the circumstances in which they may act, are matters for the Senior
authorises the tribunal to apply for an enforcing order to a county
court or, in relation to Scottish proceedings, to the sheriff
(by summary application). Paragraph (5) requires "the court's"
permission for any further appeal. Is this intended to apply also
to a decision of a sheriff on summary application?
4. Yes. We consulted Scottish
colleagues before making the Regulations and have subsequently
sought their confirmation. It is understood that "court"
is a term which covers the sheriff when he is carrying out the
refers to representations (to the tribunal) made by a party under
regulation 21(1)(b). Is regulation 22(1)(b) (or what other regulation)
intended to be referred to?
5. Yes, it was intended to refer
to regulation 22(1)(b). Accordingly it is accepted that regulation
27(4) contains a drafting defect such that the power to dispose
of an appeal in the absence of the parties is not exercisable.
It is considered that the circumstances envisaged by regulation
27(4) will arise very infrequently. The Department proposes to
amend the Regulations at the first convenient opportunity.
(in the intended full-out words beginning "a judge may")
refers to a person summoned as a witness in a county court in
pursuance of county court regulations. Should not this be a reference
to civil procedure rules?
6. Yes. It is proposed to make
an amendment to refer to the civil procedure rules at the first
requires the tribunal to decide not only whether the enforcement
decision was justified but also what "enforcement action"
should be taken. Explain what kinds of action, in terms of section
37 (and any other relevant sections) of the Health Act 1999, is
intended. (Compare "enforcement action" as defined in
section 5(6) of the Deregulation and Contracting Out Act 1994).
7. Section 11 of the Interpretation
Act 1979 is relied on for the proposition that where an Act confers
power to make subordinate legislation, expressions used in that
legislation have, unless the contrary intention appears, the meaning
which they bear in the Act. On that basis "enforcement action"
means action taken to implement an enforcement decision, the meaning
which those words have in section 37(6)(a) of the Health Act 1999.
Examples of enforcement action therefore include the determination
of the amount of any recoverable sum or penalty which is payable
under the provisions which fall to be considered by the Tribunal.
The definition of "enforcement action" in section 5(6)
of the Deregulation and Contracting Out Act 1994 is wider and
extends to the granting, renewal and variation of licences.
8. It is proposed to make Regulations
to correct the errors identified in points 1, 4 and 5 above by
the end of March 2000 or shortly thereafter. As it is not envisaged
that any enforcement decision will be made before that time, it
is not considered appropriate to abridge the length of period
of statutory consultation with the industry body or that required
by the regulation making process, including the 21 day rule.
7th February 2000